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Choosing a Trademark

A trademark or “mark” is a word, phrase, symbol, de-sign, picture, or combination of these, that identifies the source of a product or service. COKE® , CHEVROLET® , NIKE® , DON’T LEAVE HOME WITHOUT IT® , HOLIDAY INN® , McDONALD’S® , the Nike “Swoosh” logo®, and the Microsoft “Flying Windows” logo® are all famous trademarks. Even colors. Owens-Corning Fiberglas Technology Inc. registered the color pink as a trademark and sounds -NBC registered a sequence of three chime-like musical notes—typically used in conjunction with its famous peacock logo—as a trademark- can be used as trademarks. Trademarks are often referred to as brands in the advertising industry.

A trademark can be a valuable asset to a business. Properly selecting and using a strong unique mark can instantly communicate a wealth of information to consumers and symbolize the quality of a product or service. Trademarks fall into 5 basic types: generic, suggestive, arbitrary, and fanciful. The basic types and examples are depicted below.

In reviewing the types of the trademarks, notice that the types span a continuum. Trademarks that are strongest and of best-known brands are arbitrary or fanciful. An arbitrary or fanciful mark has many advantages:

it is less likely that a search of pending and registered marks will turn up a conflict;

the mark will be easier to protect from infringement; consumers will be less likely to confuse your mark with other marks; and

competitors will be less likely to use a mark close to yours without infringing your mark.

On the opposite side of the continuum are generic or descriptive trademarks. Generic or descriptive trademarks describe the product being offered. The common or popular usage of the trademark, aside from the product, renders the trademark almost trite and indefensible. The generic and descriptive trademarks have little or no distinctiveness.

There may be a natural objection to arbitrary or fanciful marks, because the marks do not describe or suggest the product or service. The assumption is that a descriptive mark will be more easily understood by consumers and therefore make advertising more effective. But descriptive marks are inherently weaker and sometimes difficult to register and protect from infringement.

You should try to select an arbitrary or fanciful or at least suggestive mark and depend upon your own advertising and promotion to create brand awareness. If you feel compelled to describe what the product or service, try using a slogans and “tag lines” that describe the product or service, such as “CHARMIN, the softest toilet paper.”